P. v. Garcia
Filed
7/12/12 P. v. Garcia CA5
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERT COTA GARCIA,
Defendant and Appellant.
F062592
(Tulare
Sup. Ct. No. VCF241073)
APPEAL from
a judgment of the Superior Court of
County. Gerald F. Sevier, Judge.
Jeffrey S. Kross, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On April
28, 2011, appellant Robert Cota Garcia was convicted in count 1 of forcible
sexual penetration by a foreign object (Pen. Code,
attempted forcible rape (§§ 261, subd. (a)(2), 664), and in count 3 of
assault with intent to commit a sexual offense during the commission of a
(b)). On the same date, appellant
admitted two prior strike convictions (§§ 1170.12, subds. (a)-(i), 667,
subds. (b)-(i)), two serious felony convictions (§ 667, subd. (a)(12)),
and two prior prison terms (§ 667.5, subd. (b)).
On May 26,
2011, the trial court sentenced appellant to
years to life.
title="">[2] On the same date, appellant filed a timely
notice of appeal.
We affirm
the judgment of conviction and remand to the trial court with directions for
correction of the sentence.
STATEMENT OF FACTS
In August
2010, the 60-year-old appellant resided with his older brother, John Garcia,
and John’s wife, L.G. Appellant had his
own bedroom in their home and L.G. had known appellant since she first married
John in 1967. On August 22, 2010, John
was preparing to leave for work at 3:30 a.m.
John saw appellant, wearing a set of headphones, on the floor. Appellant asked his brother whether he was
going to work and then appellant went to his own room. John went to his own bedroom and spoke with
L.G. John said appellant had been up all
night and that L.G. should not bother him.
John locked the bedroom door and departed around 4:20 a.m. Only John and L.G. were supposed to have keys
to their bedroom door.
At 5:00
a.m., L.G. was awake in bed. She was
wearing her underpants when appellant opened the bedroom door with a key and
walked in naked. L.G. said appellant did
not have permission to be in the bedroom and said he was never given a key to
the door. Appellant refused L.G.’s
request to leave her bedroom. L.G. got
her cell phone from the side of the bed and called her daughter, Debra. Appellant walked behind L.G., stroked her
hair, and said, “ ‘It’s okay. I
just want to be with you.’ †When
appellant saw that L.G. was holding a phone, he grabbed it and threw it across
the bedroom.
L.G. told
appellant he was going to go to jail if he did not leave her bedroom. Appellant became angry, pulled L.G. onto her
back, and got on top of her. He removed
L.G.’s underpants and grabbed at her breasts and vaginal area. At that point, L.G. said she felt appellant’s
finger enter her vagina. She struggled
with appellant, and the two of them fell onto the floor. While L.G. was on her stomach, appellant
twisted her arm behind her back and pushed her onto the floor. L.G. said she continued to struggle and
begged appellant to stop. Appellant began
to calm down and explained that all he wanted to do was to hold her. Appellant eventually left the bedroom.
L.G.’s
daughter, Debra, testified that she received a telephone call from her mother
at about 5:00 a.m. on August 22, 2010.
Debra said she was asleep at her Tulare home when the phone at her house
rang. She answered the phone and could
hear her mother, L.G., saying, “ ‘Stop, please stop, they’re coming,
don’t.’ †Debra awakened her
husband, and the couple drove to her parents’ home, a five-minute trip. She called 911 as they drove to see L.G. When Debra and her husband arrived at the
house, appellant answered the door. He
was dressed in shorts, told Debra that her mother was in her room, and he then
went to his own bedroom. Debra went to her
mother’s room. Police later arrived at
the home and arrested appellant.
L.G. had
redness and abrasions on the inside of her left arm, the back of her right arm,
on her right palm, and on her left breast.
Her lip was swollen and red.
Appellant had scratches on his left shoulder, the left side of his rib
cage, and the left side of his neck area.
He also had red marks on the right side of his back.
After the
incident, Tulare Police Officer Matt Muller placed appellant under arrest. Appellant’s sisters then cleaned out
appellant’s room. They found a key to
L.G.’s room and a cell phone. The cell
phone contained between 20 and 25 pictures of L.G. One of the pictures showed L.G. sleeping and
the others depicted her back. None of
the pictures appeared to be posed. The
cell phone had an alarm set for 3:00 a.m.
Tulare Police Officer Timothy Ramirez went to the Garcia home and then
returned to the Tulare Police Station, where he interviewed L.G.
Appellant
had previously been diagnosed with schizophrenia. One month prior the incident, one of
appellant’s sisters picked up his prescriptions and noticed that lithium was
not among them. She said appellant acted
strangely that month. He was quieter
than usual, paced and talked to himself more, and lost weight. He also stayed up late at night and watched
television. One time, John walked out of
his room and found appellant watching television while undressed. John told appellant to put clothes on. Appellant became agitated but complied by
going to his room and putting on clothes.
Defense Evidence
Members of
appellant’s family testified that appellant had been acting stranger than
normal in the month preceding the incident.
Appellant’s cousin, Robert Garcia, Jr., testified he saw appellant once
a month and described appellant as having a “blank look.†He said appellant paced and walked back and
forth and appeared to him to be “like a walking time bomb, ready to
explode.†Yosef Geshuri, Ph.D., a
clinical psychologist, testified that appellant suffered from schizoaffective
disorder and had difficulty controlling his impulses and mood swings when he
did not take Risperidone and lithium.
Dr. Geshuri testified that people in an uncontrolled schizophrenic state
are generally unable to perform daily activities. He testified they have poor hygiene, do not
care for themselves, forget to eat, and have problems with “[b]asic self
care.†Dr. Geshuri further explained
that a patient in a controlled schizophrenic state “can do manual work and
things like this, but nothing of anything to concentrate or do some, you know
intellectual work, even computation or things of that nature. They have a hard time concentrating because
of the noise inside their head.†Dr.
Geshuri further testified that an individual with an impulse control issue
typically has “some voice in your head telling you to do something and you jump
up and do it. You decide to do it on the
spot as opposed to an ongoing delusional process .…â€
Rebuttal Evidence
Mary Oxford
testified that she was the City of Tulare librarian and acting volunteer
coordinator. She said she knew appellant
as a volunteer with the adult literacy program at the library. Oxford said appellant volunteered three to
four days a week for between two to five hours a day. Oxford described appellant as shy and quiet
and said he “worked really good with one-on-one.†Oxford said appellant last volunteered at the
library on August 21, 2010. Near the end
of his volunteer service, he asked Oxford for a paid position but was “very shy
and didn’t make eye contact.†Oxford
said she did not know whether she should be worried about appellant’s behavior
or whether he was just nervous about asking for a job.
Julio
Ramirez, owner of a Tulare barbershop, testified that he was the brother of
L.G. and also appellant’s friend.
Ramirez said he and appellant would see one another at the barbershop
almost every day. Ramirez described
appellant’s behavior between June 2009 and August 2010 as “normal.†Ramirez acknowledged that appellant would
pace up and down but said such behavior was normal for appellant. Ramirez also said, “When he [appellant] takes
the medication, he’s all right.â€
Richard P.
Berkson, M.D., a staff psychiatrist with the California Department of
Corrections and Rehabilitation, testified he examined appellant and concluded
he had schizoaffective disorder, “a kind of a combination of schizophrenia plus
bipolar disorder .…†Dr. Berkson
said appellant had “schizophrenia plus affective disorder which is a mood
disorder.â€
THERE WAS SUFFICIENT
EVIDENCE TO SUPPORT THE CONVICTION OF ATTEMPTED RAPE
Appellant contends the evidence was insufficient to prove
his guilt of attempted forcible rape.
Appellant specifically contends the evidence was
insufficient to prove either that he took a direct but ineffective step toward
accomplishing sexual intercourse with L.G., or that he intended to have
intercourse with L.G. He submits that
neither the testimony of L.G. nor the testimony of forensic nurse Jennifer
Pacheco established that appellant had a definite and unambiguous intent to
commit the crime alleged in count 2.
“Forcible rape is an act of sexual
intercourse accomplished with a person not the spouse of the perpetrator
against the person’s will by means of force or violence. [Citation.]
An attempt to commit rape has two elements: the specific intent to commit rape and a
direct but ineffectual act done toward its commission. [Citation.]â€
(People v. Guerra (2006) 37
Cal.4th 1067, 1130.) Such an act cannot
be merely preparatory. Rather, the
ineffectual act must constitute direct movement toward completion of the
crime. “A defendant’s specific intent to
commit rape may be inferred from the facts and circumstances shown by the
evidence. [Citation.]†(People
v. Clark (2011) 52 Cal.4th 856, 948.)
“In considering a challenge to the
sufficiency of the evidence …, we review the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence
– that is, evidence that is reasonable, credible, and of solid value – from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonable deduced from the evidence. [Citation.]
If the circumstances reasonably justify the trier of fact’s findings, reversal
of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.]
‘A reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility.’ [Citation.]†(People
v. Albillar (2010) 51 Cal.4th 47, 59-60.)
L.G. testified that her husband had to be
at work at 5:00 a.m., and that he typically left for work between 4:00 and 4:30
a.m. She said on August 22, 2010, her
husband entered their bedroom and said he was going to lock the door and
depart. L.G. thought only she and her
husband had keys to the bedroom door.
L.G. said she never gave appellant a key to their bedroom door. At approximately 5:00 a.m. L.G. heard the
sound of a key and the bedroom door opening.
L.G. thought her husband had re-entered the house. She looked at the doorway, saw appellant, and
told him to leave. Appellant, who was
naked, shook his head and said, “ ‘No, I have a key.’ †Appellant approached L.G. and stroked her
hair and back. When he noticed L.G. in
possession of a cell phone, he grabbed the phone from her and threw it.
L.G. said appellant became mad and starting grabbing at her
body. She said he removed her
undergarments, grabbed at her breasts and vagina, and placed his finger inside
her vagina. As appellant engaged in
sexual touching, L.G. struggled, kicked, and somehow flipped appellant
over. Appellant and L.G. landed on the
floor of the bedroom, and she told him to stop and leave her alone. L.G. did not know whether appellant tried to
do anything with his sexual organ.
Appellant grabbed her right hand and placed it behind her head with the
elbow pointed up while he pushed her head down.
L.G. was on her stomach when he bent her arm in that fashion. She said they started to scoot over and
approached the door of the bedroom. She
begged him to stop, and he began to calm down.
She then asked him to leave the room.
He finally left the room after telling L.G., “ ‘All I want to do is
hold you. All I want to do is hold
you.’ â€
“The crime of attempted rape ‘is complete if there is a
concurrence of the intent to commit such crime with a direct, although
ineffectual, act towards its commission,’ [citation] providing the efforts of
the accused ‘reach far enough toward the accomplishment of the desired result
to amount to the commencement of the consummation.’ [Citation.]
To constitute such an attempt it is not necessary ‘that the act be the
last proximate one for the completion of the offense,’ [citation] or that there
be any penetration whatever.
[Citation.]†(
571, 574.) “Whenever the design of a
person to commit a crime is clearly shown, slight acts done in furtherance of
that design will constitute an attempt.â€
(People v. Fiegelman (1939) 33
Cal.App.2d 100, 105.)
The acts of appellant went well beyond
“slight†in the instant case. Although
his brother and sister-in-law believed they had the only keys to their bedroom
door, appellant somehow secured a key, unlocked the door that his brother had
previously locked before leaving for work, and entered the bedroom
unclothed. He fondled and physically
struggled with L.G., removed her sleep shorts, got on top of her, and
penetrated her with his finger. These
facts evidenced a design to commit rape, and the jury could reasonably construe
them to find a specific intent to engage in rape.
The judgment of conviction of rape was
supported by substantial evidence.
II.
THE TRIAL COURT WAS NOT
REQUIRED TO STAY THE TERMS OF IMPRISONMENT ON TWO OF THE THREE COUNTS
Appellant contends the trial court should
have stayed the terms of imprisonment on counts 1 (forceful sexual penetration)
and 3 (assault to commit a sexual offense during a first degree burglary)
because the acts underlying these counts were incident to the same objective of
the attempted forcible rape charged in count 2.
Sentencing Hearing
At the May 26, 2011, sentencing hearing,
defense counsel argued that “all three charges are [subject to Penal Code
section] 654 with [respect to] each other.
They certainly seem to occur within one transaction, the same goal. At the very least, Count 3 should be 654 with
both [counts] 1 and 2.†The prosecutor
argued: “People feel that all three charges are separate acts.†The court ultimately ruled: “In analyzing the
evidentiary scenario that was presented, I find that Penal Code Section 654 is
not a bar to the recommended sentence .…â€
The court imposed a total term of 35 years to life in state prison on
count 3, a consecutive term of 25 years to life on count 1, and a concurrent
term of 25 years to life on count 2.
In ordering the term on count 2 to run
concurrent to the term on count 3, the trial court stated:
“While [Penal Code section] 654 is not a bar
to consecutive [sentencing] as I have ruled, the reason I’m making it
concurrent is that there is certainly a nexus between Count 2 and Count 3 in
that the act in Count 2 was the first assault that Mr. Garcia committed, and
because of the close nexus between the separate intent he had at the time of
entry of the room, the entry being the general intent to commit an assault, but
the actual assault that first occurred … they’re tied sufficiently enough in
their connection to--by the Rules of Court and by an analysis of the Rules of
Court to indicate that a concurrent sentence is appropriate, but the
consecutive sentence on Count 1 to Count 3 stands.â€
Penal Code section 654
“An act or omission that is punishable in
different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision.†(§ 654, subd. (a).) Section 654 applies not only when one act
violates more than one statute, but also when a course of conduct comprising an
indivisible transaction violates more than one statute. (Neal
v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another
point in People v. Correa (June 21,
2012, S0163273) ____ Cal.4th ____ [p. 2].)
“Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor.†(
“[S]ection 654 prohibits multiple punishments
for a single act or omission which may be ‘punishable in different ways by
different provisions’ of the Penal Code.
Section 654 applies not only where there is but one ‘act’ in the
ordinary sense, but also where there is an indivisible course of conduct. [Citation.]
‘Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor. If
all the offenses were incident to one objective, the defendant may be punished
for any one of such offenses but not for more than one.’ [Citations.]
‘If, on the other hand, defendant harbored “multiple criminal
objectives,†which were independent of and not merely incidental to each other,
he may be punished for each statutory violation committed in pursuit of each
objective, “even though the violations shared common acts or were parts of an
otherwise indivisible course of
conduct.†[Citation.]’ [Citation.]â€
(People v. Kenefick (2009) 170
Cal.App.4th 114, 124-125.) Whether the
acts of which a defendant has been convicted constitute an indivisible course
of conduct is a question of fact for the trial court. The trial court’s findings will not be
disturbed on appeal if they are supported by substantial evidence. No special treatment is to be afforded to a
defendant under section 654 simply because defendant chose to repeat, rather
than alternate, his or her many crimes.
(People v. Clair (2011) 197
Cal.App.4th 949, 959.) “ ‘We review
the trial court’s determination in the light most favorable to the respondent
and presume the existence of every fact the trial court could reasonably deduce
form the evidence. [Citation.]’ Citation.]â€
(People v. Vang (2010) 184
Cal.App.4th 912, 916.)
Parties’ Specific
Contentions
Appellant contends: “[T]he evidence
demonstrated appellant entered L.G.’s bedroom and assaulted her with the
intentions of forcibly raping her, in the process of which he pulled off her
panties and digitally penetrated her.
All three acts occurred in one single, brief, indivisible transaction. Thus, the assault and digital penetration
charged in counts 3 and 1, respectively, were incidental to the ultimate goal
of forcibly raping L.G., the attempt for which he was convicted in count 2. As all three crimes were incident to a single
objective …, the court was required to stay two of the resulting prison terms
pursuant to section 654.â€
Respondent contends: “[A]ppellant
committed three acts during his attack on L.G.
First, he attempted to rape L.G. on the bed, then he penetrated her with
a foreign object, and finally he assaulted her while on the floor of her
room. [Citations.] When appellant entered L.G.’s room he had the
intent to rape her. While in the process
of attempting to rape L.G., appellant had a separate intent to penetrate L.G.
with a foreign object, which he accomplished by sticking his finger inside of
her vagina. These crimes involve
separate intents and objectives that were not incidental to one another.â€
Analysis
An appellate court employs the
substantial evidence standard to review the trial court’s factual finding,
implicit or explicit, of whether there was a single criminal act or a course of
conduct with a single criminal objective.
(People v. Powell (2011) 194
Cal.App.4th 1268, 1296.) “[S]ection 654
does not preclude separate punishment for multiple sex offenses which, although
closely connected in time and part of the same criminal venture, are separate
and distinct, and which are not committed as a means of committing any other
sex offense, do not facilitate commission of another sex offense, and are not
incidental to the commission of another sex offense. [Citations.]â€
(People v. Castro (1994) 27
Cal.App.4th 578, 584-585.)
Although the applicability of section 654
to conceded facts is a question of law (People
v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison)),
the question of whether a defendant entertained multiple criminal objectives is
generally one of fact for the trial court, whose findings will be upheld on
appeal if supported by any substantial evidence (People v. Osband (1996) 13 Cal.4th 622, 730-731;
1308, 1312). A trial court’s implied
finding that a defendant harbored a separate intent and objective for each
offense will be upheld on appeal if it is supported by substantial
evidence. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310.)
review the trial court’s findings ‘in a light most favorable to the respondent
and presume in support of the order the existence of every fact the trier could
reasonably deduce from the evidence.
[Citation.]’ [ Citation.]†(People
v. Green (1996) 50 Cal.App.4th 1076, 1085.)
In this case, respondent argues that
appellant possessed one intent when he attempted to rape the victim on the bed,
a different intent when he penetrated her vagina with his finger, and yet
another intent when he assaulted her while they were struggling on the floor of
the bedroom. The specific intent
involved in foreign object penetration, as charged in count 1 (§ 289,
subd. (a)(1)), is the purpose of sexual arousal, gratification, or abuse. (People
v. Senior (1992) 3 Cal.App.4th 765, 776.)
Attempted forcible rape, as charged in count 2 (§§ 261, subd.
(a)(2), 664), entails the specific intent to commit rape and a direct but
ineffectual act done towards its commission.
(People v. DePriest (2007) 42
Cal.4th 1, 48.) The crime of assault
with intent to commit rape in the commission of a first degree burglary, as
charged in count 3 (§ 220, subd. (b)), requires the specific intent to
have intercourse against the victim’s will.
(People v. Dillon (2009) 174
Cal.App.4th 1367, 1383.)
The Supreme Court
recently observed:
“[W]e have declined to apply section 654 where the defendant
has committed multiple violations of the same provision of law prohibiting
sexual assaults. In Harrison, supra,
the victim’s home and committed three separate acts of digital
penetration. After each penetration the
victim was able to pull away. Twice the
defendant was able to overpower her and penetrate her again. After the third assault she was able to
retreat to a bathroom and lock the door.
The entire episode lasted seven to 10 minutes. [Citation.]
“First,
the Harrison court found that the
defendant was properly convicted of
three separate counts of sexual penetration by a foreign object. [Citation.]
It then considered the trial court’s imposition of separate consecutive
sentences for each sexual offense. It
held that section 654 did not bar separate penalties for each assault, even
though they involved violations of the same code section and occurred during a
brief period. It relied on the holding
of Perez, supra, 23 Cal.3d at page 553, that a ‘ “defendant who attempts
to achieve sexual gratification by committing a number of base criminal acts on
his victim is substantially more culpable than a defendant who commits only one
such act.†’ [Citation.]
“The
argument that under section 654 he could not receive multiple punishments
because his crimes involved identical offenses.
The court explained that to apply section 654 in that way ‘would mean
that “once a [defendant] has committed one particular sexual crime against a
victim he may thereafter with impunity repeat his offense,†so long as he does
not direct attention to another place on the victim’s body, or significantly
delay in between each offense.
[Citation.] However, it is
defendant’s intent to commit a number of separate base criminal acts upon his
victim, and not the precise code section under which he is thereafter
convicted, which renders section 654 inapplicable.’ [Citation.]â€
(People v. Correa,
original italics.)
In this case, the trial court implicitly
cited separate intents underlying the offenses when he imposed a concurrent
term on count 2. The Supreme Court
stated many years ago: “[T]here is no legal or logical bar to separate
punishment where … each of defendant’s
‘repenetrations’ was clearly volitional, criminal and occasioned by separate
acts of force. [T]he nature and
sequence of the sexual ‘penetrations’ or offenses defendant commits is
irrelevant for section 654 purposes.
Whether defendant ends a break in the activity by renewing the same sex
act … or by switching to a new one …, the result under section 654 is the
same.â€
(Harrison, supra, 48
Cal.3d at p. 338.)
The sentence imposed by the trial court did not
violate section 654.
THE ABSTRACT OF JUDGMENT
SHOULD BE CORRECTED
Appellant contends the abstract of
judgment should be corrected to strike the prior prison term enhancements under
section 667.5.
Procedural History
On April 28, 2011, the jury rendered
guilty verdicts on the substantive counts.
After the court discharged the jury, appellant waived trial of the
special allegations and admitted two prior felony convictions (§ 667,
subd. (a)(1)) and two prior prison terms (§ 667.5, subd. (b)). On May 26, 2011, the court conducted a
sentencing hearing but made no mention of the prior prison terms. The abstract of judgment filed May 31, 2011,
and the amended abstract filed August 31, 2011, listed six section 667.5,
subdivision (b) enhancements with the notation “S†for “stayed.†The original sentencing minute order of May
26, 2011, stated: “All Special Allegations of PC667.5(b) attached to Count 1,
Count 2 and Count 3 are STAYED.†The
August 31, 2011, minute order reflected imposition of a term of 10 years
pursuant to section 667, subdivision (a)(1) as to count 3 and stated: “Remaining
Special Allegations attached to Count 3 are STAYED. … Special allegations
attached to Count 1 are STAYED[.] … Special Allegations attached to Count 2 are
STAYED.â€
The Parties’ Contentions
Regarding Prior Prison Term Enhancements
Appellant contends an enhancement under
section 667.5, subdivision (b) either must be imposed or stricken and
maintains: “Here, it is reasonable to assume the court did not intend to
further increase appellant’s already lengthy sentence by adding any one-year
enhancements. However, the proper
procedure was to strike the enhancements, rather than stay them pursuant to
section 654.†Respondent agrees the
prior prison term enhancements should be stricken but goes on to address the
prior felony convictions underlying those prior prison terms: “The lower court
failed to sentence appellant to two prior serious felony enhancements on each
of his indeterminate sentences. Because
he should have been sentenced to four additional serious felony enhancements
and those felonies are the same felonies underlying the prior prison term
enhancements, the prior prison term enhancements should be stricken.â€
Thus, the parties agree the court should
have stricken the prior prison term enhancements. However, a question remains with respect to
the court’s ruling on the prior serious felony enhancements (§ 667, subd.
(a)(1)) charged in the information. When
the truth of the allegation of conviction of a crime qualifying for a five-year
enhancement has been established, it is mandatory that the enhancement be
imposed. Failure to impose the five-year
enhancement results in an unauthorized sentence, which may be addressed for the
first time by the reviewing court. (
1550, 1560; People v. Turner (1998)
67 Cal.App.4th 1258, 1269.)
Conclusion
Because imposition of the five-year
enhancements was mandatory, this matter must be remanded with directions that
the trial court (1) impose the two five-year prior serious felony enhancements
as to counts 1 and 2; (2) strike the prior prison term enhancements as to all
counts; and (3) amend the abstract accordingly, specifically designating count
3 (assault with intent to commit rape and/or penetration by foreign object) as
the principal term.
DISPOSITION
The judgment is affirmed. This matter is remanded to the trial court
with directions to designate the term imposed on count 3 as the principal term;
to impose two five-year prior serious felony enhancements (§ 667, subd.
(a)(1)) as to counts 1 and 2; to strike the prior prison term enhancements
(§ 667.5, subd. (b)) as to all counts; to amend the abstract of judgment
accordingly; and to transmit certified copies of the amended abstract to all
appropriate parties and entities.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Levy, Acting P.J.
______________________
Franson, J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] As to count 3,
the court imposed the principal term of 25 years to life for the assault with
intent to commit rape and/or penetration by a foreign object with a 10-year
enhancement for two prior serious felonies; as to count 1, the court imposed a
consecutive term of 25 years to life for penetration by a foreign object; as to
count 2, the court imposed a concurrent term of 25 years to life for attempted
rape. The court apparently stayed
imposition of the prior serious felony enhancements on the convictions for
attempted rape and penetration by foreign object and stayed the prior prison
term enhancements as to all counts. The
court awarded 319 days of custody credits, imposed a $10,000 restitution fine
(§ 1202.4, subd. (b)), and imposed and suspended a second such fine
pending successful completion of parole (§ 1202.45).
